supremecourtreview]
a West Virginia Supreme Court justice
after officials of a company with a case
before that court spent $3 million to get
him elected.5
Other campaign finance laws are
vulnerable. Citizens United rested on
two key premises: spending money in
election campaigns is political speech
under the First Amendment, and corporations have the same free speech rights
as citizens. These assumptions and the
Court’s holding can be used to challenge
other campaign finance laws, like those
that govern union expenditures.
Even more unsettling is the possibility that the decision may affect laws that
prohibit corporations from contributing
money directly to candidates for elective office. Citizens United concerned
only independent expenditures by corporations and not their right to make
contributions directly to a candidate’s
campaign. But this distinction seems
irrelevant given that the Court held that
corporations are entitled to the same free
speech rights as citizens, which include
spending money to influence elections.
Likewise, the Court did not consider
the constitutionality of restrictions on
campaign spending by foreign corporations. But that, too, seems immaterial when one considers that foreign
corporations, like American ones, have
the capacity to inform the public and
increase discussion and debate.
In fact, the Court implicitly rejected
any notion that free speech is limited
to citizens. Corporations obviously are
not citizens. Yet, they are accorded
First Amendment protection in
Citizens United. This is in marked tension with earlier cases holding that the
First Amendment protects only speech
by citizens.
Just four years ago, in Garcetti v.
Ceballos, the Supreme Court held that
there is no First Amendment protection
for the speech of government employees
on the job acting in the scope of their
duties.6 As in Citizens United, the opinion was written by Kennedy and joined
by Roberts, Scalia, Thomas, and Alito.
Kennedy stressed that speech by government employees is not protected
because it is not speech as “citizens.”
He wrote: “We hold that when public
employees make statements pursuant
to their official duties, the employees
are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”7
But if corporations have full First
Amendment rights, then it makes no
sense to limit free speech protection to
expression by citizens. Indeed, the claim
for free speech protection by government
employees is even stronger than that for
corporations; government employees do
not relinquish their citizenship when
they enter their workplace.
The Roberts Court reveals its
disregard for precedent. In 2003, in
McConnell, the Court upheld the constitutionality of the same provision that
was invalidated in Citizens United. What
changed in the intervening seven years?
Justice Sandra Day O’Connor, who had
been part of the majority to uphold the
provision of the McCain-Feingold law,
was replaced by Alito, who voted to
strike it down.
In a concurring opinion in Citizens
United, Roberts said that the Court
should overrule the earlier decisions
because they were “erroneous.”8 But
what made them erroneous was simply
that a majority of the current Court disagreed with them.
During their confirmation hearings,
Roberts and Alito talked a great deal
about respecting precedent and super-precedent. Now, it is clear that this was
empty rhetoric. The Roberts Court obviously gives little weight to precedent, as
evidenced last term when it overruled
decisions that changed the standards
for pleading in federal court,9 created
major new exceptions to the exclusionary rule,10 and limited the protections of
the Sixth Amendment right to counsel.11
Not coincidentally, each of these decisions was 5–4, with the same five conservative justices in the majority.
The constant conservative attack
on judicial activism is put to rest. By
any measure, Citizens United was stunning in its judicial activism. The deference to the democratic process so often
preached by conservatives in attacking
liberal rulings that protect rights was
nowhere in evidence.
Conservatives have lambasted court
decisions protecting rights not stated in
the Constitution or intended by its framers. But there is no evidence that the First
Amendment’s drafters contemplated the
notion that spending money in election
campaigns is a form of protected speech.
Nor did they intend any provisions in the
Bill of Rights to protect corporations. It
was not until 1978, in First National Bank
of Boston v. Bellotti, that the Court first
found any First Amendment protection
for speech by corporations.12
Few Supreme Court decisions are
more important on as many different levels as Citizens United. It portends even
greater changes in campaign finance
laws in the years ahead, and it reveals
much about the Roberts Court. By any
measure, it will likely be the most significant decision of the 2009 term.
Notes
1. 130 S. Ct. 876 (2010).
2. 540 U.S. 93 (2003).
3. 494 U.S. 652 (1990).
4. Am. B. Assn. Standing Comm. on Jud.
Indep., Fact Sheet, www.abanet.org/judind/
jeopardy/ fact.html.
5. 129 S. Ct. 2252 (2009).
6. 547 U.S. 410 (2006).
7. Id. at 421.
8. Citizens U., 130 S. Ct. at 920 (Roberts, C.J.,
concurring).
9. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
10. Herring v. U.S., 129 S. Ct. 695 (2009).
11. Montejo v. La., 129 S. Ct. 2079 (2009).
12. 435 U.S. 765 (1978).
